Taken from the Second Annual Intermountain Discovery Conference on 9.24.10, this presentation shares an overview of Litigation Hold in light of Systems, Processes, and Challenges. Speaker Expert: Daniel S. Day is a Senior Attorney with SUPERVALU, Inc. where he focuses on commercial litigation management, supervision of outside counsel, and dispute resolution in the areas of real estate, construction, business torts, contracts, intellectual property, bankruptcy, and antitrust for a leading national food and drug retail and supply distibution chain. A member of the Board of Directors of the Association of Corporate Counsel, Mountain West Chapter, Mr. Day previously served as an attorney with Berman, Gaufin, Tomsic, and Savage of Salt Lake City. In his role with Berman, Gaufin, Tomsic, and Savage, Mr. Day was responsible for large complex business litigation to include business torts, securities fraud, contracts, constitutional law, antitrust, banking and utility regulation, bankruptcy, and employment law. Additionally, Mr. Day handled firm administrative responsibilities such as recruiting, insurance, employee benefits, including retirement plans, and other management assignments. Source: Orange Legal Technologies (OrangeLT.com)

1. The Litigation Hold
Systems, Processes & Challenges
Understanding & Representing your
Business Client
Daniel S. Day

3. • Determine the point at which it is necessary
to implement a litigation hold
• Has a subpoena been issued or a lawsuit filed?
• Is litigation anticipated?
• Balancing the risks & weighing the burdens
• Avoid false alarms where there are only rumors or
vague threats of litigation; threats made by a
discredited plaintiff, or where the threats lack
credibility.

4. • “The obligation to preserve evidence arises when
the party has notice that the evidence is relevant
to litigation or when a party should have known
that the evidence may be relevant to future
litigation.” Zubulake v. UBS Warburg LLC, 220
F.R.D. 212, 216 (S.D. N.Y. 2003) (Zubulake IV).
• “Once a party reasonably anticipates litigation, it
must suspend its routine document retention/
destruction policy and put in place a ‘litigation
hold’ to ensure the preservation of relevant
documents.” Id. at 218.

6. • “[T]he failure to issue a written litigation hold constitutes gross
negligence because that failure is likely to result in the
destruction of relevant information.” The Pension Committee of
the University of Montreal Pension Plan v. Banc of America
Securities, LLC, 685 F. Supp. 456 (S.D. N.Y. 2010).
• The hold must direct employees (“key players”) to preserve all relevant
records, paper and electronic
• Determine the scope
• Cover all potential document storage: laptops, PDA’s, smartphones, home
computers, thumb drives, etc.
• Create a mechanism for collecting preserved records
• Cannot place total reliance on the employees without supervision of
counsel

7. • “Once a ‘litigation hold’ is in place, a party
and her counsel must make certain that all
sources of potentially relevant information
are identified and placed ‘on hold,’ to the
extent required.” Zubulake v. SBS Warburg
LLC, 229 F.R.D. 422, 432 (S.D. N.Y. 2004)
(Zubulake V).

8. • Will the litigation hold be implemented to
involve an entire IT system?
• Is it manageable?
• If the burden of compliance is placed on
individual employees:
• Communications to preserve documents must be
clear, and repeated.
• Follow up to ensure compliance is required.

10. • It is important to document every step of the
litigation hold process.
• Date and rationale for instituting a hold
• Names and titles of the key decision-makers or
custodians
• Scope of the hold and how the parameters were
determined
• A copy of the hold notice
• Dates hold notices were sent
• Who received the hold notices
• Date and rationale for releasing the hold

11. • Corporate retention policies
• Following policies & identifying exceptions
• Overkill
• Costs & burdens
• Hold in place or collection

13. • What IT systems, software & policies regarding
document retention does the client have.
• What is the budget & costs considerations.
• What impact does the hold have on the business.
• What resources does the client have, can they
manage it in-house or does it need to be
outsourced.
• What is your client’s risk tolerance?

14. • Determine how a litigation hold will be
communicated and who will manage each of the
separate tasks.
• Who will conduct the litigation hold interviews
and how will outside counsel be involved?
• Make sure information is recorded and shared
with outside counsel.
• Know the costs. Manage the costs. Reduce the
costs.

15. • For a large organization with recurring litigation,
utilizing litigation hold software is a “no-brainer.”
• Automated communication
• Record of acknowledgements from records custodians
• Regular reminders and follow up communications
• Facilitate collection records in one place
• Generate reports

16. • A paper trail
• Everything archived in one place
• Getting a confirmation or acknowledgement
from custodians
• Updating the hold—automatic reminders

17. • There are a lot of vendors in the space, but there
is a lot of infancy. There are only a few mature
vendors.
• Determine your requirements.
• Determine your budget.
• Attend a demonstration to make sure the vendor
can perform to set requirements.
• Is the vendor system a work in progress or is it
fully developed?

18. • Merely automate communication of the
litigation hold (a notice tool).
• Forensics teams have access.
• Document collection tool.
• Record and document collection efforts.

19. • Is the scope and breadth of the litigation hold
reasonable and defensible?
• How large is the case? What is the financial
exposure?
• What will it cost to implement the litigation
hold? What are the burdens on the system?

20. • Conduct a conference
• Discuss issues about preserving discoverable
information
• Discuss issues about disclosure or discovery of
electronically stored information
• How will information be retained?
• In what form will documents be produced?
• What information is available or unavailable?
• Cost sharing
• Discuss scope of the litigation hold/resolve issues &
problems

21. • (D) Responding to a Request for Production of
Electronically Stored Information. The
response may state an objection to a
requested form for producing electronically
stored information. If the responding party
objects to a requested form--or if no form
was specified in the request--the party must
state the form or forms it intends to use.

22. • E) Producing the Documents or Electronically Stored
Information.Unless otherwise stipulated or ordered by the
court, these procedures apply to producing documents or
electronically stored information:
• (i) A party must produce documents as they are kept in the
usual course of business or must organize and label them
to correspond to the categories in the request;
• (ii) If a request does not specify a form for producing
electronically stored information, a party must produce it
in a form or forms in which it is ordinarily maintained or in
a reasonably usable form or forms; and
• (iii) A party need not produce the same electronically
stored information in more than one form

23. • (e) Failure to Provide Electronically Stored
Information. Absent exceptional
circumstances, a court may not impose
sanctions under these rules on a party for
failing to provide electronically stored
information lost as a result of the routine,
good-faith operation of an electronic
information system.

25. • “Counsel must take affirmative steps to
monitor compliance so that all sources of
discoverable information are identified and
searched.” Zubulake v. SBS Warburg LLC, 229
F.R.D. 422, 432 (S.D. N.Y. 2004) (Zubulake V).

26. • Follow up reminders
• Refine the scope of the hold based on updated
information and understanding of the case
• Keep track of terminated employees
• Gather documents responsive to the litigation hold
• Release requests that are no longer relevant
• Use the meet & confer so that you don’t over-
preserve and increase burdens & costs

28. • If you don’t release the hold in time, your
litigation costs may increase substantially
• Documents subject to the hold may be
subject to other litigation
• Communicate and coordinate with IT and
other departments